Updated with new statements from photographer Harold Davis on 6/3/2022.

A federal judge has ruled that Pinterest’s algorithms that place images next to ads do not violate the Digital Millennium Copyright Act (DMCA). The summary judgement, earlier this month, stems from a longer legal battle between photographer Harold Davis and the social media platform over multiple images uploaded by various Pinterest users. These user-uploaded images were then displayed in feeds with paid advertisements. The photographer claimed that, by using his images adjacent to advertisements, Pinterest was profiting off his copyrighted work. In the summary judgement, the court sided with Pinterest, saying it did not control the ad placements.

“According to Judge Gilliam” said Davis, “Pinterest did not control ad placements because this was done by Pinterest’s artificial intelligence software. But this is a nonsensical position. Pinterest’s programmers wrote this software, and Pinterest is responsible for it. It really shouldn’t work to hide behind ‘our software did it, not us.'”

Davis also said that Pinterest stripped the CMI and EXIF data from his images before posting them. “I can’t really think of any legitimate reason for doing this. The only reason I can think of for doing this is to obscure who the creator of the image is, and that it is copyrighted material, and to delete my copyright notice from the photograph.”

As for the decision in Pinterest’ favor, Davis told Rangefinder that he filed a notice of appeal on May 31. “In my opinion, this decision endangers the rights of photographers and other IP owners because using its logic an entity can make commercial use of an image in any way whatsoever, only provided a third-party has uploaded it,” he said of the court decision.

[Read: How to Protect Your Photos on Social Media]

U.S. District Judge Haywood Gilliam Jr. granted Pinterest the summary judgement, determining that Pinterest’s use of the image falls under the Digital Millennium Copyright Act (DMCA). The Act protects online service providers from certain copyright claims when a user—and not the platform itself—uploads copyrighted content. In order for the claim to violate DMCA protections, the judge noted that “the plaintiff must show both that the service provider had the right and ability to control the alleged infringements and that it received a financial benefit directly attributable to those specific alleged infringements.”

The judge’s decision rested in part on Pinterest’s algorithms, saying that the platform’s machine learning model did not appear to embed advertising cues into the copyrighted work. Pinterest’s advertising platform is based on machine learning using user cues as well as details like the title of the pin, the court documents state. “There is simply no evidence in the record that Pinterest embeds anything within Pins generally, or Plaintiff’s works specifically, to create or obtain signals for its advertising algorithms,” the decision reads.

[Read: Photo Copyright Basics and Rock Solid Contracts]

Davis notes that he did not take issue with the users that uploaded the images in the first place because they appear on boards for personal use. Instead, he argued that placing the images in the same feed as promoted pins—which Pinterest profits from—constituted “unauthorized commercial use.” However, Pinterest’s DMCA takedown procedures—one of the requirements for protection under the DMCA—did not have an option that allows the image to remain but not to be used in conjunction with advertising.

The judge apparently took issue with the photographer’s wish for the image to remain on the platform. “In other words, rather than notify Pinterest of alleged copyright infringement on its platform so Pinterest can remove it, Plaintiff wants Pinterest to continue to display his images on its website and mobile application, but he does not want Pinterest to profit in any way from doing so,” the order reads. But Davis told Rangefinder that, “I have no wish whatsoever to have my images remain on the Pinterest platform, as I have abundantly made clear from my very first communications with Pinterest.”

The court case originated with a complaint filed in November 2019 by Davis. “If this decision [where the court sided with Pinterest] stands, it will represent an egregious expansion of the DMCA to the great detriment of content creators and IP owners,” Davis reiterated. “It would be extremely detrimental to photographers and the ability to make a living in photography.”